Kennedy takes another hit in ASIC battle

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Sydney businessman Trevor Kennedy has lost his bid to prevent the Australian Securities and Investments Commission and the federal police from accessing material contained on his computer hard drive.

Yesterday Justice Catherine Branson in the Federal Court ruled Mr Kennedy had not established entitlement to a declaration that the police could not take a copy of his hard drive, made at his Macquarie Street office last November 13 when they exercised a search warrant.

It is the second legal blow for Mr Kennedy. Six weeks ago he failed to prevent ASIC and the federal police from accessing two notes found at his Kirribilli home on November 13. Mr Kennedy wrote the notes in preparation for a meeting with his Swiss-based financial adviser and lawyer, Benno Hafner, last October.

This followed disclosures in The Australian Financial Review that Mr Kennedy had owned 12 per cent of printer Offset Alpine. The share parcel, held in Switzerland, was not declared to ASIC when he was examined under oath about it in May 1995.

Mr Kennedy is appealing the decision in July.

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Regarding his hard drive, Mr Kennedy had sought an order declaring that neither the federal police nor ASIC was entitled to examine process, copy or otherwise access or use the imaged hard drive or any copy of it.

He also sought an order requiring the copy of the hard drive to be delivered to him. He failed but is likely to appeal. As yet, neither the federal police nor ASIC have looked at the copy.

Mr Kennedy also argued he was entitled to claim legal professional privilege over material in his computer. But Justice Branson noted that Mr Kennedy's lawyer was present throughout the computer seizure and no claim for privilege for specific material was made then or since.

"Nor did Ms Toman (Mr Kennedy's solicitor) on that day raise with Mr Baker (of the federal police) or any persons assisting him . . . the possibility that the imaged hard drive might contain material that would attract legal professional privilege," she said.